The Case of the Two Impeachment Cases

Donald Trump's impeachment trial, the sequel, is scheduled to move forward next week as planned. And so, both sides filed pretrial legal briefs yesterday, with the Democratic impeachment managers filing theirs first, and Trump's defense lawyers—David Schoen and Bruce Castor—filing their response later in the day.

In cases like these, of course, legal briefs often present two very different versions of reality. Even allowing for that, however, the two sides scarcely seem to be on the same planet. The Democrats assert that Trump is "singularly responsible" for inciting the riot that engulfed the Capitol and left several people dead. The defense argues that Trump's words were First Amendment-protected political speech, that they had absolutely nothing to do with the insurrection that took place little more than an hour after he spoke, and that the whole trial is unconstitutional anyhow because Trump is no longer in office.

There isn't much to say about the Democrats' argument; if you believe that Trump's words influenced the crowd, then he's clearly guilty of the crime of which he is accused, inciting insurrection. As to the defense argument, it's not too strong. Among the well-established exceptions to the First Amendment are words that incite imminent lawless action. What the insurrectionists did was unquestionably lawless. Further, they did what they did just over an hour after hearing from Trump, so "imminent" clearly applies as well. That means that, again, if you believe Trump's words influenced the crowd, then his First Amendment claim doesn't hold water. As to the constitutional argument, the Congress already tried someone after they had left office (back in 1876), so there is precedent that runs contrary to the former president's claim. There is also the logic that if being out of office was a "Get out of Impeachment Free" card, then anyone could avoid impeachment or conviction by simply resigning.

That said, the legalities here matter very little, as most of the 100 jurors on this case will be guided by politics more than by the law. And since any argument would have given cover for the 45 or so GOP senators who will vote to acquit, it's interesting that Trump's lawyers decided to make two different ones. Maybe they just wanted to give themselves some insurance, or maybe they are showing off. However, we wonder if there isn't some long-term thinking going on here. Specifically, there is some risk that Trump will be criminally indicted for his role in the insurrection. "Impeachment is not constitutional for someone who is out of office" works well for the 45 senators, but has no bearing in a criminal court. On the other hand, "Trump was exercising his First Amendment rights" probably won't do much for the senators, but might be compelling in a court trial. That is particularly true if Trump's lawyers can tell a jury "The Senate heard this argument and acquitted Trump, and so you should, too." This is just speculation, of course, but that's all we've got at the moment. (Z)

Buttigieg and Mayorkas Confirmed

Pop quiz time! What do Alan S. Boyd, John A. Volpe, Claude S. Brinegar, William T. Coleman Jr., Brock Adams, Neil E. Goldschmidt, Drew Lewis, James H. Burnley IV, Samuel K. Skinner, and Mary Peters have in common? Answer to follow. Before we get to that, however, we will report that the Senate continues to slowly chug along, confirming the members of Joe Biden's cabinet. The latest to get the seal of approval: Secretary of Transportation Pete Buttigieg (86-13) and DHS Secretary Alejandro Mayorkas (56-43).

Buttigieg's confirmation is, of course, historic because he becomes the first openly gay person to serve in a presidential cabinet. He figures to quickly become the highest-profile Secretary of Transportation in U.S. history, for a number of reasons:

• It's a relatively new department (1967), and the job has never been all that well defined. So, Buttigieg will be in a position to put his own stamp on it.
  
  
• Buttigieg already has a fairly high profile thanks to his presidential campaign, up to and including the support of a fairly sizable fan club. By contrast, most transportation secretaries are fairly anonymous. That, incidentally, is the answer to the pop quiz: All 10 of those people served in the office prior to Buttigieg.
  
  
• The Biden administration has big plans for Transportation, including an infrastructure bill. Given the somewhat pork-y nature of infrastructure bills, as well as the fact that red states have some of the biggest infrastructure issues, Team Joe might actually get such a thing passed by the Senate. Failing that, it could be next year's reconciliation project.
  
  
• Similarly, Biden's environmental plans include transitioning to electric vehicles (which dovetails nicely with the recent GM announcement that they hope to be all-electric by 2035). Buttigieg will undoubtedly be working on this, too.
  
  
• In addition to his actual job, Buttigieg's charisma, youth, and comfort on camera mean that he will be deployed as an administration spokesperson on a regular basis, even for non-transportation-related issues. They might as well give him his own dressing room at "Meet the Press" right now.

The 39-year-old Buttigieg obviously envisions bigger and better things in his future. And given that Democrats basically can't get elected to statewide office or to the U.S. Senate in his home state of Indiana, that means the rungs on his personal ladder to the presidency are cabinet positions, ambassadorships, and maybe the vice presidency. While it is true he might plausibly run for a House seat (two of Indiana's nine representatives are Democrats), it's not easy to move from the House to the White House (see below for another person who has reached that same conclusion).

Mayorkas' confirmation, meanwhile, is not as historic as Buttigieg's, but is still historic, as he will be the first Latino to lead DHS. There was some talk of a filibuster, and the vote was fairly close, as many Republicans were dubious that Mayorkas could be trusted to properly enforce immigration laws. That skepticism appears to be rooted primarily in Mayorkas' ethnic background, since the senators who kvetched the most loudly about the Secretary (particularly John Cornyn, R-TX) were vague when it came to specific concerns. If so, that would be more than a tad bit racist. In any event, some GOP senators decided it wasn't worth it to leave DHS leaderless for additional weeks, so they dropped their opposition.

At the moment, two weeks into the administration, 6 of Biden's 23 cabinet-level nominees have been confirmed. That's about the same pace at which Donald Trump's cabinet-level nominees were confirmed, though considerably slower than the rate that the cabinets of Barack Obama, Bill Clinton, and the Georges Bush were confirmed. Soon, Biden will presumably fall well behind the Trump pace, due to the Senate turning its attention to impeachment next week (which will not only claim the senators' time and energy, but is also serving as an excuse for some Republican committee chairs, like Lindsey Graham, to poke the Democrats in the eye by refusing to hold hearings). (Z)

Sanders Takes His Best Shot at $15/Hour

It could be that the man is about to meet his moment. Half a century ago, when he was a dirty, sandal-wearing, rabble-rousing hippie, Sen. Bernie Sanders (I-VT) was an advocate for the working class. Today, having become a clean, mitten-wearing, rabble-rousing latter-day hippie, he still is. Pushing the federal minimum wage up to $15/hour has been his signature policy issue for years, dating back to before his first presidential campaign. And now he's got popular support for the idea (67% of Americans), a Democratic-controlled Congress and White House, and soon the gavel of the Senate Budget Committee. That means the time has come for the Senator to make his move.

To start, Sanders has concluded—quite reasonably—that there is no point in working to get Republicans on board with his plans. Most or all of them are quite happy with the current federal minimum wage of $7.25/hour, set at that level in 2009. They are unconcerned that $7.25 today has the equivalent buying power of just $6.01 back then. Anyhow, the Vermont Senator recognizes that if this is going to get done, it's going to get done through reconciliation. That means that his target audience is not the 10 most centrist Republicans (who even knows who those folks are, since there seem to be only about four centrists left in the Senate GOP conference). Instead, his audience is the blue dog Democrats in the Senate, the ones who will be the hardest gets in terms of whipping 50 votes for the proposal.

To this end, Sanders and other increase-minimum-wage supporters are marshaling their research on two fronts. First, it will be necessary to persuade the Joe Manchins (D-WV) and Kyrsten Sinemas (D-AZ) of the world that a $15/hour minimum wage is a net positive, and won't impose an undue burden on small businesses. Second, it will be necessary to persuade Senate parliamentarian Elizabeth MacDonough that this will have a non-incidental impact on the budget, and so does not run afoul of the Byrd Rule and thus become what is known as a Byrd dropping.

As to the first point, there is ample evidence that an increased minimum wage lifts all ships, as it were, and that the increased expense for business owners is offset by the increased buying power of workers. As to the second point, there are several arguments for the budgetary impact of a higher minimum wage; the one that the Democrats are likely to pursue is that fewer workers earning poverty-level wages will reduce the amount of federal assistance the government pays out. That said, there is no way to know what Manchin, Sinema, MacDonough, et al. will buy, evidence or no. If Sanders does pull this off, it will be the crowning achievement of his long career in public service.

The greater danger to Sanders is MacDonough, since she is completely nonpartisan and is also the only person associated with the Senate who understands its Byzantine rules. As far as Manchin and Sinema go, if $15 is a bridge too far, Sanders might be able to convince them that $12/hr or $10/hr is OK. If MacDonough rules that an increase to $15/hr doesn't fly, then even $8/hr won't fly. (Z)

Schiff Wants to be California AG

Now that California AG Xavier Becerra has become Secretary of Health and Human Services-designate Xavier Becerra, there is quite a bit of jockeying going on to be his replacement. A new and interesting candidate has emerged in the person of Rep. Adam Schiff (D-CA), who has let it be known that he'd like the job once it comes open, and who has Speaker Nancy Pelosi (D-CA) twisting Gov. Gavin Newsom's (D-CA) arm on his behalf.

Schiff, who earned a great deal of attention, and much support from Democrats, during the first Trump impeachment is an ambitious fellow who aspires to bigger and better things than just being one of the 435 (or 441) members of the House. And he's pretty much reached his ceiling in the lower chamber; the next generation of House leadership might include some AARP-eligible folks, and it might include some white folks, but it's not likely to include any AARP-eligible white folks. So the 60-year-old Schiff is out of luck. As California AG, by contrast, he'd be in excellent shape to mount a bid for the Senate seat that Dianne Feinstein (D-CA) is expected to vacate, or for the California governor's mansion, or for a job in the White House (don't forget that Becerra's predecessor as state AG was...Kamala Harris).

Whether Newsom is willing to make the pick is another matter, of course. Replacing a Latino with a white guy is not the best optics, politically. Further, Newsom might regard Schiff as a threat. If the Governor is thinking about taking his own shot at Feinstein's Senate seat, or if he fears Schiff could unseat him during the next regular gubernatorial election (in 2022) or in a potential recall election, then Newsom won't be eager to provide the platform that makes that possible. Of course, it's all just gossip until Becerra is formally confirmed, and thus leaves his office vacant. Note that Schiff's district is D+23, so if he does leave the House, the Democrats will be down a seat for only a short while until his sure-to-be-Democratic replacement is elected. (Z)

Biden Has a Mini-Scandal

Several members of Donald Trump's administration had babies at or near the end of his term (presumably without the president's involvement, but you never know). Consistent with the Federal Employees Paid Leave Act, passed in December of 2019, they were expecting to be granted maternity leave, even if it extended into the early months of the Biden administration. Inasmuch as the rule of executive branch service is that the job ends when the presidential term ends, this would have required special waivers from Team Joe. Those special waivers were not granted, and now the affected individuals are understandably not happy.

From the point of view of the former Trump officials, they gave of their time and energy and expertise to serve their country, and the rug got yanked out from under them, in some cases leaving them without employment or health insurance at a time in their lives when it's particularly problematic to be left without employment or health insurance. They think that the Biden administration is failing to live up to its allegedly family-friendly and woman-friendly platform, and suspect they may be getting targeted because of general irritation with the Trump administration.

On the other hand, the Biden administration has a valid argument here, too. Their main assertion is that because Donald Trump refused to accede to an orderly transition, it's his fault that these folks were left in the lurch. In particular, Team Biden observes that some Trump underlings did not plan on getting maternity leave and others did, and because the incoming administration was not in the loop, there was no opportunity to establish a consistent and equitable policy. Further, it is definitely the case that some of the folks who planned on maternity leave were getting inaccurate information about their eligibility from members of Team Trump, who assumed authority they did not have.

In any event, we see three possible takeaways here. The first is that if this becomes the next great right-wing talking point, the story is actually pretty complex, and nobody here is either entirely in the right or entirely in the wrong. The second is that the damage done by Donald Trump's petulance and unwillingness to accept reality was significant and took many forms. And the third is that it's silly for things like health insurance and maternity leave to be tied to one's job; perhaps one day soon the U.S. will consider a different approach. (Z)

Newsmax Boots Mike Lindell

For a long time, "MyPillow Guy" Mike Lindell was known primarily for making moderate-quality sleep accessories, and perhaps for his struggles with addiction and/or his unethical business practices (he was given an "F" by the Better Business Bureau). These days, Lindell is best known as a fanatical Trump supporter, one who is willing to veer dangerously close to embracing fascism in hopes of keeping The Donald in power. This has cost him a fair bit of business, and also got him booted off Twitter last week.

In view of the latter development, Lindell was invited onto Newsmax yesterday to whine and moan about "cancel culture" and how social media outlets are biased against conservatives. However, he decided that instead he wanted to whine and moan about how the election results were fake news, and how corrupt officials and voting machine makers conspired to steal victory from Benito Trumpolini. This was not where the Newsmax interviewers wanted to go, and so they tried to steer the conversation back to cancel culture, and then they read a disclaimer about how the election results were legitimate and the voting machines performed exactly right. When Lindell continued to rant, one of Newsmax's hosts abandoned ship and walked off set.

Ultimately, "social media discriminates against conservatives" and "the election was stolen" are equally conspiratorial and equally untethered from objective fact. However, the former remains an approved right-wing talking point, while the latter is no longer. It's interesting which delusions the propaganda machine will perpetuate, and which ones it will not, though in this case the distinction is easy to understand: nobody is suing Newsmax over "unfair social media" claims, while Dominion Voting Systems (DVS) currently has an army of lawyers going after networks and individuals who make "the election was stolen" claims. One wonders if the Facebooks and Twitters of the world will reach the conclusion sometime soon that they might be served well by filing a lawsuit or two. The damage they suffer from such assertions is probably not as substantial as the damage that DVS has suffered, but there surely is enough damage there for some well-heeled lawyers to make life hard for those who insist on railing against the anti-conservative biases of social media. (Z)

Lin Wood Under Investigation for Illegal Voting

As long as we're talking about cronies who enable the former president's "I actually won the election" fantasies, Trump lawyer Lin Wood—who trailed only Sidney Powell and Rudy Giuliani in terms of the number of absurd election-related lawsuits filed—is now under investigation by the state of Georgia. The dispute is pretty simple. Everyone agrees that Wood voted for president in Georgia, which used to be his state of residence. Everyone also agrees that he is now a resident of South Carolina. The question is: When did he relocate? If it was on Feb. 1, 2021, as Wood claims, then all is well. If it was prior to casting his ballot, he has committed a felony under Georgia law.

Time will tell where this goes, but Wood may be in real trouble here. Reportedly, the office of Georgia Secretary of State Brad Raffensperger (R) has e-mails from Wood that contradict the lawyer's residency claims. Further, these sorts of things do tend to leave a paper trail. For example, if Wood canceled his cable, electric, and gas service on, say, Oct. 1, that's pretty clear evidence that he was departing the state.

The larger point here is that the wheels of justice may turn a bit slowly, but there are a lot of Trump associates who should be nervous. Some officials (U.S. attorneys, state AGs, local AGs) may be concerned that the laws are properly enforced. Others may be looking to score political points. Still others might be interested in a measure of revenge. Or it could be a combination of these things. In any event, there are a lot of people out there with a lot of resources at their command who are looking to pop any member of Team Trump who went outside the boundaries of the law. Which, let's be honest, is most of the members of Team Trump. (Z)

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